Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Education Advocacy Service, attorney for petitioner, Mary C. Tucker, Esq., of counsel
Hon. Michael A. Cardozo, attorney for respondent, Thaddeus Hackworth, Esq., of counsel
Petitioner appeals from that part of the decision of an impartial hearing officer which denied his request to be reimbursed for a portion of his son's tuition at a private school during the 2004-05 school year. The impartial hearing officer denied petitioner's request notwithstanding her finding that individualized education programs (IEPs) developed by respondent's Committee on Special Education (CSE) for the student during that school year were invalid. Petitioner further appeals from the impartial hearing officer's award of occupational therapy services. The appeal must be sustained in part.
When the impartial hearing began in April 2005, the student was 11 years old and in the sixth grade at Gesher Yehuda. Gesher Yehuda, a private, special education school serving students with learning disabilities and attention deficit disorders (Parent Ex. K at p. 1), is not approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities.
The student attended Magen David Yeshiva for prekindergarten and continued there through the fifth grade (Dist. Ex. 3 at p. 1). Throughout that time, he had difficulty remaining focused and demonstrated "very poor" motor skills, as well as social and behavioral skills that were "hampered" (Tr. pp. 56-57). When he was five years old, the student reportedly was diagnosed as having an attention deficit disorder (ADD)1 (Parent Ex. D. at p. 1). He also received occupational therapy for approximately six months when he was five years old due to poor fine motor development (Dist. Ex. 5, Parent Ex. D at p. 1).
In the spring of 2002, when the student was in the third grade, he was referred to a private psychologist for a psychoeducational evaluation because of "persistent difficulties in school" (Parent Ex. D at p. 1). The private psychologist noted that the student took medication before the evaluation, and although he worked compliantly, he remained somewhat distant and distracted (id.). He tended to be impatient, impulsive, inattentive and "quite fidgety" (Parent Ex. D at p. 1). Administration of the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) yielded a verbal IQ score of 123, a performance IQ score of 94 and a full scale IQ score of 109 (Parent Ex. D at pp. 3, 5). The private psychologist noted that the student’s results were similar to results from an evaluation conducted in 1999, and indicated that the difference between the student's verbal and performance scores was highly discrepant statistically, "representing the significant difficulty the student had implementing, integrating and translating his complex intelligence onto paper" (Parent Ex. D at p. 10). The private psychologist further indicated that the student was a "slow processor" as a result of his deficits. She reported that the student's attention issues affected his academic performance in all areas. The private psychologist described the student as socially immature and insufficiently attuned to his own responses and how he appeared to others, leaving him isolated and angry with poor social skills and repetitively negative interactions. She recommended modifications to adjust to his academic needs, mostly in the area of writing. She further recommended tutoring twice weekly to assist with organization of longer assignments, to organize and prioritize his work, to focus and mobilize attention for details, and to learn study skills, test taking skills and time management skills. Because of reports that the student's focusing was "poorer at different points during the day," the private psychologist recommended that the student's medication be reevaluated (Parent Ex. D at p. 11).
In fifth grade during the 2003-04 school year, the student had difficulty performing in class and his grades began to decline (Tr. p. 59). At the end of the school year, he was given work to complete over the summer as a condition of entering sixth grade, but the work was too difficult for him (Tr. p. 60). After consulting with the private psychologist who had evaluated the student in 2002, petitioner decided to place his son in a private special education school (Tr. pp. 60-61). By letter dated August 31, 2004, petitioner requested an evaluation of his son because of difficulties with penmanship, organization, math skills and classroom focus and attentiveness (Parent Ex. P).
In September 2004, petitioner enrolled his son at Gesher Yehuda (Tr. p. 81). The student was placed in a class with a staffing ratio of 10:1+1 (Parent Ex. H). In addition to the subjects that comprise its core curriculum, Judaic studies are scheduled throughout the day (Parent Ex. N). The student's teacher, in conjunction with the curriculum coordinators at Gesher Yehuda, developed an IEP for the student which included annual goals for reading, math, social studies, science and writing (Parent Ex. F).
On October 13, 2004, the student's mother provided consent to have her son evaluated (Dist. Ex. 6). That same day a social worker interviewed the student's mother to obtain a social history (Dist. Ex. 3). The student's mother indicated that her son had a negative attitude toward school and was resistant to completing homework (Dist. Ex. 3 at p. 1). She further indicated that her son never developed handwriting or fine motor skills, and that he needed organizational and study skills (id.). The student's mother discussed the student's medications for ADD (id.). She also advised the social worker that during the previous year, her son was receiving counseling from a psychologist on a weekly basis (id.). The social worker reported that the student had an angry demeanor throughout the interview, but noted that the student's mother indicated that her son was not like that all the time (Dist. Ex. 3 at p. 3).
A psychoeducational evaluation of the student was conducted on October 1, 2004 (Dist. Ex. 5). Administration of select subtests of the WISC-III yielded a prorated verbal IQ score of 105, a prorated performance IQ score of 87 and a prorated full scale IQ score of 96, placing the student in the average range of intellectual functioning (Dist. Ex. 5 at p. 3). The psychologist noted that the 18 point discrepancy between the student's verbal and performance IQ scores was due in part to the student's poor fine motor skills and difficulty organizing and reproducing information presented visually (id.). On the Wechsler Individual Achievement Test - Second Edition (WIAT-II), the student performed below grade level on subtests measuring reading comprehension, math computation, and his ability to solve written math problems (Dist. Ex. 5 at pp. 3-4). According to the psychologist, the student's writing sample contained sentences which were very simple in construction and his handwriting was poor (Dist. Ex. 5 at p. 2). The student's performance on the Bender Gestalt was significantly below grade level (Dist. Ex. 5 at p. 3). He had difficulty organizing his responses on the page (id.). The student's responses on measures of projective testing reflected a somewhat guarded approach (Dist. Ex. 5 at p. 4). The psychologist opined that the student would benefit from resource room services and occupational therapy to help him achieve grade level math skills (Dist Ex. 5 at p. 5).
In November 2004, the student was observed during a morning group reading lesson at Gesher Yehuda (Dist. Ex. 4). The observer noted that the student's oral reading was smooth with some word errors, and that it lacked expression. The observer also noted that the student showed a lack of focus and an inability to stay on task, and that he frequently disrupted the lesson by calling out and talking loudly. She indicated that the student often failed to follow along as his classmates read and that the teacher frequently had to show him where on the page a classmate was reading. The observer interviewed the student's teacher who noted that the student had difficulty sitting still and remaining focused on a lesson. She explained that the student's disruptive behaviors included singing during a lesson and banging on his desk. The teacher reported that the student lacked organizational skills and had a difficult time with math. She further reported that the student's reading level was grade appropriate.
The CSE met on December 1, 2004 and classified the student as having a learning disability (Dist. Ex. 1). It recommended that the student be placed in general education with special education teacher support services (SETSS) five periods per week in a group with a staffing ratio of 8:1 (Dist. Exs. 1, 8). The IEP developed as a result of the meeting provided for testing accommodations of extended time to double time (Dist. Ex. 1 at p. 9). A notation on the IEP indicated that an occupational therapy evaluation was being requested (Dist. Ex. 1 at p. 5). In the social/emotional performance section of the IEP, the student’s behavior was described as age appropriate with no modifications needed (Dist. Ex. 1 at p. 4). On December 8, 2004, respondent sent a final notice of recommendation to petitioner advising him of the CSE's recommendations (Dist. Ex. 8).
In a letter dated December 13, 2004, petitioner requested an impartial hearing seeking reimbursement for tuition costs at Gesher Yehuda and indicating that he would be continuing his son's enrollment there (Parent Ex. C). He explained that he did not believe that the recommended services were sufficient to allow his son to be successful academically, socially and emotionally.
An occupational therapy evaluation was conducted on December 17, 2004 (Tr. p. 26), but is not part of the record. On January 19, 2005, the CSE reconvened to review the occupational therapy evaluation (Tr. pp. 43-44). In addition to the recommendations it made in December 2004,2 the CSE recommended that the student receive individual occupational therapy twice per week for 30 minutes (Dist. Ex. 2 at pp. 2, 11, Dist. Ex. 7). The health and physical development section of the student's IEP was supplemented to provide that the student displayed deficits in attention, self-regulation/behavior, organization, graphomotor skills, visual motor skills and visual perception that affected his educational achievement (Dist. Ex. 2 at p. 6). Goals related to improving attention span, visuomotor skills and graphomotor skills also were added to the student’s IEP (Dist. Ex. 2 at p. 8). On January 19, 2005, a final notice of recommendation was sent to petitioner advising him of the CSE's recommendations (Dist. Ex. 7). The student's parents did not visit the public school where the recommended services were to be provided (Tr. pp. 69-70).
Subsequently, petitioner advised respondent that he did not agree with the CSE's recommended program, but that he did accept the offered occupational therapy services (Parent Exs. A, B). He indicated that his son required a self-contained program, and reiterated his request for an impartial hearing to obtain tuition reimbursement.
In a report dated February 2005, the student's teacher noted that the student was taking medicine to address an ADD (Parent Ex. G). She further noted that the student was easily distracted and would create a distraction if concepts or assignments were difficult or not appealing to him and that he would often sing or bang pencils on his desk in the middle of lessons. She indicated that he also acted impulsively, frequently calling out and speaking with other students. She further indicated that the student required constant stimulation in order to stay on task and to complete his work. She described the student as socially immature and oppositional toward authority and indicated that he appeared angry.
The student's teacher also reported that the student was lacking in all organizational areas (id.). She noted that mathematics was difficult for the student due to the organization required for accurate computation. She further noted that the student's writing was poor due to his fine motor skills. The student's teacher indicated that the student benefited from a small group setting where his attention could be refocused and his academic needs addressed. She recommended that he receive occupational therapy and counseling in order to help him with organizational skills and to improve his social skills, and deal with frustration and anger properly.
The impartial hearing was held on April 15 and May 5, 2005. The impartial hearing officer rendered her decision on June 7, 2005. She found that the student's IEPs were developed by improperly composed CSEs and were invalid. She further found that neither the student's academic deficits nor his behavior warranted a full time special education class without any opportunities for mainstreaming. Accordingly, she found that petitioner failed to show that Gesher Yehuda was appropriate to meet his son's needs. Additionally, finding that the student was entitled to receive occupational therapy and that the CSE failed to provide it, she ordered that the student receive 36, 30-minute sessions of individual occupational therapy. She also ordered the CSE to provide counseling, and to conduct an assistive technology evaluation and a speech-language evaluation.
Petitioner appeals from the impartial hearing officer's decision. He requests that the impartial hearing officer's decision be reversed in part and that he be awarded partial reimbursement for his son's schooling costs at Gesher Yehuda from December 8, 2004 through the end of the 2004-05 school year. He also claims that the impartial hearing officer erred in limiting the award of occupational therapy services to 36 sessions. In addition, petitioner requests that respondent fund an independent educational evaluation (IEE) at public expense to assess his son's ADD, intellectual and academic strengths and weaknesses, and his attention and behavior problems and needs. Petitioner further requests that respondent be ordered to acknowledge his son as other health impaired in addition to learning disabled3 pending an appropriate evaluation. Respondent does not appeal or cross-appeal from the impartial hearing officer's decision.
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE)4 (20 U.S.C. § 1400[d][A]).5 A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).
A board of education may be required to reimburse parents for their expenditures for private special educational services obtained for a student by his or her parent, if the services offered by the board of education were inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-16 ; Cerra v. Pawling Cent. Sch. Dist., ___ F.3d ___, 2005 WL 2381962, at *5 [2d Cir. Sept. 28, 2005]; M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000]). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S., 231 F.3d at 102; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of the Bd. of Educ., Appeal No. 03-062).
With respect to the first criterion for an award of tuition reimbursement, whether the services offered by respondent are appropriate, the impartial hearing officer found that the IEPs developed for the student were invalid. I note that in its answer, respondent alleges that the program recommended by its CSE was appropriate, but it does not appeal or cross-appeal from the impartial hearing officer's decision. An impartial hearing officer's decision is final and binding upon both parties unless appealed to the State Review Officer (20 U.S.C. § 1415[i][A]; N.Y. Educ. Law § 4404). As respondent did not appeal or cross-appeal the impartial hearing officer's finding that the IEPs developed by its CSE were invalid, I find that petitioner has prevailed with respect to the first criterion for an award of tuition reimbursement.
Having determined that respondent did not met its burden of proving that it offered to provide a FAPE to the student during the 2004-05 school year, I must now consider whether petitioner has met his burden of proving that placement of his son at Gesher Yehuda was appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080). In order to meet that burden, petitioner must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program which met the student's special education needs (Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 14; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).
As noted above, Gesher Yehuda is a private school that serves children with learning disabilities and attention deficit disorders (Parent Ex. K at p. 1). Students are provided with direct individualized teaching within the classroom setting or individualized tutorials. Teachers use a multisensory approach. Small structured classes range in size from six to ten students. The student's class consisted of ten students, a teacher, an assistant teacher, and two rotating teachers for math and reading to accommodate small group instruction (Tr. p. 156).
The record shows that the student demonstrated needs in mathematics, written expression, fine motor skills, organization, attending, and behavior and social skills. According to the Gesher Yehuda brochure, math skills and concepts are taught through the use of conventional aids, as well as concrete manipulatives (Parent Ex. K at p. 2). The student's teacher testified that the student received math instruction in a group of three students for 45 minutes daily (Tr. p. 175). She indicated that the student's math difficulties were due in part to his lack of organizational skills (Tr. pp. 146-47) and his fine motor weaknesses (Tr. p. 147). She further indicated that she focused on tasks such as outlining and computation, and teaching the student how to take a step-by-step approach (id.). The teacher stated that the student required a lot of attention to make sure that problems were properly aligned before he attempted to solve them (id.). She noted that the student was very negative about math and that he required and received a lot of encouragement and positive reinforcement (id.).
The student's teacher also testified about the student's writing deficits (see Tr. pp. 147-48, 175, 179-81). She explained that the student was unorganized and that the physical process of writing was difficult for him (Tr. pp. 148-49). She indicated that in addition to sometimes being included in the morning session with spelling, writing assignments were frequently included in reading lessons and intensive writing instruction was provided on Fridays (Tr. p 179). The teacher testified that when working with the student on writing, she focused on the organization of essays and smaller paragraphs, and on eliminating the use of run on sentences and sentence fragments (Tr. p. 148).
The student's teacher further testified that fine motor deficits slowed the student down, and that he needed time to write in order to produce legible work (Tr. p. 149). She indicated that she frequently allowed him to type so that he could focus more on the content and organization of his writing rather than on the fine motor requirements. The student's teacher opined that the student required occupational therapy (Tr. p. 149; Parent Ex. G). She described the occupational therapy program offered at Gesher Yehuda and indicated that the teachers work with the occupational therapists so that the skills that are worked on in therapy can be implemented in the classroom (Tr. pp. 149-50).
In addition to requiring help with organizational skills in math and writing, the student's teacher testified that the student required intensive work on organizational skills with longer assignments and multistep tasks (Tr. p. 201). She further testified that she constantly worked with the student on organizational skills, giving him constant immediate reminders as he worked (id.).
The student also had difficulty attending, even within a small classroom setting (see Dist. Ex. 4; Tr. pp. 34, 155, 160). The student's teacher testified that the student's attending difficulties affected every aspect of his learning (Tr. p. 145), and that his attending and behavior problems slowed him down academically (Tr. p. 182). She further testified that in order to address the student's attending deficits, she used quiet hand signals or wrote messages on the board that the student would recognize were addressed to him (Tr. pp. 159-60). The student's teacher indicated that she did not notice an improvement in the student's attending when his medication was increased (Tr. p. 154).
The student also demonstrated behavior and social skills deficits. His teacher testified that she met weekly with the school's behavior psychologist and principal regarding the students' behavior (Tr. pp. 154-55). She further testified that she frequently used behavior modification with the student in the classroom (Tr. p. 154). She stated that she used a point system and fake dollar system because the student required immediate feedback (id.). The student's teacher also testified that the student appeared angry and had difficultly with teacher and peer interactions (Tr. pp. 150-53). She indicated that the student did not appear to understand any type of authority nor the concept of friendship (Tr. p. 151). She further indicated that to address the student's social skills deficits, she had frequent conversations with him or would take a walk with him (Tr. p. 152). She also met with her supervisor about an increase in the student's difficulties with social interactions to discuss whether his behavior was attributable to attention difficulties (Tr. pp. 150-51). The teacher opined that the student would benefit from a social skills group and indicated that to some extent her class acted as a social skills group because the student and his classmates were similar (Tr. p. 202). She also recommended that the student receive counseling services (Tr. pp. 153-54; Parent Ex. G). Although the student was not receiving counseling at Gesher Yehuda (Tr. p. 189), the record shows that the school provides individual and group counseling as well as formal guidance to all students who may exhibit immature social cognition, impulsivity, or poor organizational skills (Parent Ex. K at p. 3).
I note that the student's teacher testified about the progress the student made at Gesher Yehuda (Tr. pp. 169-74). She stated that "with a lot of personal attention, tons of encouragement, and reward," the student made progress in math (Tr. p. 174). She reported that the student was currently a year behind in math, noting that when he arrived at Gesher Yehuda he was two years behind (Tr. pp. 174-75). Similarly, the teacher testified that with support and personal attention the student made progress in writing (Tr. p. 148).
As noted above, the impartial hearing officer found that neither the student's academic deficits nor his behavior warranted a full time special education class without any opportunities for mainstreaming (IHO Decision at p. 19). I disagree. Although the least restrictive environment requirement (20 U.S.C. § 1412[a]) applies to unilateral parental placements (M.S., 231 F.3d at 105), it must be balanced against the requirement that each student receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]).
The record shows that Gesher Yehuda provided small, structured classes with teachers who employed a multisensory approach and constant refocusing. It also provided individualized instruction and personalized attention to address the student's math, writing and organizational deficits. Behavior modification techniques and other strategies were used to address the student's behavior and social skills deficits. Gesher Yehuda also offers occupational therapy, counseling, and social skills training. Given the student's deficits, including his continued attending and behavior difficulties, and his prior experience in a mainstream setting, I find that petitioner has met his burden of demonstrating that Gesher Yehuda offered an educational program which met his son's special education needs.
The final criterion for an award of tuition reimbursement is that the petitioner's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]); see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff’d, 471 U.S. 359 ). In the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement (Application of the Bd. of Educ., Appeal No. 05-030; Application of the Bd. of Educ., Appeal No. 04-091; Application of a Child with a Disability, Appeal No. 04-049).
Based upon the information before me, I am unable to find that the student's parents did not cooperate with the CSE or that they engaged in conduct that precluded the development of an appropriate IEP. The record shows that the student's parents were concerned about their son's educational performance, and in late summer 2004, sought advice from the private psychologist who evaluated their son in 2002 (Tr. pp. 60-61). They discussed whether a large junior high school environment would be overwhelming for the student given his fifth grade performance (id.). Thereafter, in a letter dated August 31, 2004, petitioner referred his son to the CSE for an evaluation (Parent Ex. P). That letter identified Magen David Yeshiva as the student's former school and Gesher Yehuda as the student's current school (id.). In October 2004, the student's mother shared private evaluation reports with respondent, provided consent to the CSE to evaluate her son and participated in a social history interview (Dist. Exs. 3, 6; Tr. pp. 210-12). She attended both CSE meetings (Dist. Exs. 1, 2). Petitioner's request for an impartial hearing dated December 13, 2004 indicated that his son was enrolled at Gesher Yehuda on a temporary basis until the CSE could complete its work (Parent Ex. C). I note that a parent's preference for a private school placement is not dispositive of a claim for an award of tuition reimbursement (Application of a Child with a Disability, Appeal No. 03-003; Application of a Child with a Disability, Appeal No.02-059; Application of a Child with a Disability, Appeal No. 01-068). Furthermore, petitioner requests partial reimbursement for the time period from December 2004 after the CSE first met, to the end of the 2004-05 school year. I find that petitioner's claim is supported by equitable considerations. Accordingly, I find that petitioner is entitled to an award of tuition reimbursement.
Petitioner also claims that the impartial hearing officer erred in limiting the award of occupational therapy services to 36 sessions. He argues that based upon a referral and consent date of August 31, 2004, respondent was required to provide occupational therapy as of December 8, 2004, and, therefore, his son is entitled to nine additional occupational therapy sessions for a total of 45 sessions. I am not persuaded by petitioner's argument. The record shows that the student's mother provided consent to have her son evaluated in October 2004 (Dist. Ex. 6). The record further shows that the occupational therapy evaluation of the student was conducted in December 2004 (Tr. p. 26). The CSE reconvened on January 19, 2005, reviewed the occupational therapy evaluation and recommended occupational therapy services (Dist. Ex. 2). For a student not previously identified as having a disability, the board of education must arrange for the appropriate special education programs and services to be provided within 60 school days of the receipt of consent to evaluate (8 NYCRR 200.4[d]). Under the circumstances, I find no reason to disturb the impartial hearing officer's award of 36 sessions of occupational therapy services.
Petitioner further requests that I order an IEE at public expense to assess his son's ADD, intellectual and academic strengths and weaknesses, and his attention and behavior problems and needs. Petitioner bases his request on respondent's asserted failure to address those needs (see Pet'r Mem. p. 9). Federal and state regulations provide that a parent has a right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district (see 34 C.F.R. § 300.502[b]; 8 NYCRR 200.5[g]). Nevertheless, the right to an independent evaluation at public expense is subject to the right of a school district to initiate a hearing to demonstrate the appropriateness of its evaluation or that the evaluation does not meet the school district criteria (see34 C.F.R. § 300.502[b]; 8 NYCRR 200.5[g][iv]). There is no basis in the record for finding that petitioner is entitled to an independent evaluation at public expense. The impartial hearing was not initiated by respondent in response to a request by petitioner for an IEE. Rather, it was requested by petitioner and there is no indication in the record that petitioner's right to an IEE was at issue (see Pet. ¶ 11). Furthermore, because this issue was not raised at the impartial hearing, it is not properly before me (see Application of a Child with a Disability, Appeal No. 03-095; Application of a Child with a Disability, Appeal No. 01-024; Application of a Child with a Disability, Appeal No. 99-060).
I have considered petitioner's remaining contentions and I find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent it found that petitioner failed to show that Gesher Yehuda was appropriate to meet his son's needs; and
IT IS FURTHER ORDERED that respondent shall reimburse petitioner for 60 percent of his son's tuition costs at Gesher Yehuda from December 2004 through the end of the 2004-05 school year upon proper proof of payment; and
IT IS FURTHER ORDERED that respondent shall provide petitioner's son with occupational therapy services as specified in this decision.
1 Noting that the record also included references to the student's diagnosis as an attention deficit hyperactivity disorder, the impartial hearing officer determined that she would refer to the condition as ADD in her decision. In an effort to be consistent, I will do the same.
2 The January 2005 IEP is similar to the December 2004 IEP except for the addition of occupational therapy (Tr. p. 8; Pet. ¶ 9).
3 The impartial hearing officer determined that the CSEs that met in December 2004 and January 2005 were improperly composed. The CSE classified the student as having a learning disability when it met in December 2004, and continued that classification when it met in January 2005. Although the CSE was improperly composed when it determined that the student was eligible for special education, the parties do not dispute that the student should be classified as learning disabled and is eligible for special education services. Petitioner requests, however, that his son also be classified as having an other health impairment (OHI) due to his ADD diagnosis. While the record shows that the student is diagnosed as having an ADD and continues to have attending difficulties, the record is not sufficiently developed with respect to whether the CSE considered a classification of OHI. Nevertheless, the parties do agree that the student should be classified.
4 The term "free appropriate public education" means special education and related services that--
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the stands of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and,
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
20 U.S.C. § 1401(8).
5 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the statute as it existed prior to the 2004 amendments. The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.